Posted By Davis & Hoss, pc || 31-May-2012

It’s not an uncommon
situation: late at night a car full of people is pulled over by police. Inside the car the police find some illicit drugs,
but no one claims them. Who do the drugs
belong to? This is a key question
because here in Tennessee it unlawful to manufacture, sell, deliver or possess
a controlled substance. It is not a
crime to be in the presence of a controlled substance. Often in situations like these, where the
owner is unknown, the police officer will charge everyone inside the car with
possession of the drugs.

Tennessee law
recognizes two kinds of possession: actual and constructive. Actual possession is simple- everyone
understands that if you have something in your hands or on your person you are
in actual possession of it. Constructive
possession is trickier, however, and the courts have defined it in different
ways. Commonly, constructive possession
requires that the person knowingly have the power and intention to exercise
dominion and control over an object.
Simply put, “constructive possession is the ability to reduce an object
to actual possession.” United States
v. Martinez, 588 F.2d 495 (5th
Cir. 1979). To illustrate this concept,
consider your household possessions.
While at work you are not in actual possession of any of the things at
your home. However, you are in
constructive possession because you have both the power and ability to actually
and legitimately possess these things.
Going one step further, while watching football at the home of a friend,
are you in constructive possession of their television? Clearly not. Even though you are in the presence of the
television, you do not have the power to take it into actual possession.

The definition of
constructive possession and its application in actual trials remains slippery and
difficult for juries to apply. The
Tennessee Supreme Court recently agreed to explore the issue by granting certiorari
to hear the defendant’s appeal in the case of Tennessee v. Bobby Lee Robinson.
In the case the defendant was convicted of the possession of more than
300 grams of cocaine with the intent to sell, a Class A felony. The cocaine had been found in the center
console and the floor of a car in which the defendant was a passenger. However, nothing was directly found on Mr.
Robinson, and there was considerable evidence from a search of the co-defendant’s
house that the co-defendant had been running a drug selling operation.

It is likely that the
Tennessee Supreme Court agreed to hear the case, a conviction based on
constructive possession, to shed some light on this difficult legal concept. While appellate courts are typically loathe
to overturn a jury verdict, such a reversal may be what they are
contemplating. It will be interesting to
see what they have to say. After all, “freedom is a possession of inestimable value.”